the girl from auntie

Here’s another thing.

Since it was launched, people have been touting Creative Commons as a great idea. And it is, frankly. There are a lot of creators out there who do want to share their work in a spirit that focuses on attribution and perpetuating the work (because the more a work is distributed the more it will live on, one way or another). And — well, I don’t need to promote CC or point out how it’s been used by various publishers and self-publishers.

But just one thing: please, before you decide to use a CC licence for your work, make sure it means what you think it means.

Publishers may choose the non-commercial use version of the CC licence, thinking that by doing so they have prevented anybody from profiting in any way from the use of their work. When you read the bright, clear language on the allegedly “human-readable summary” page for the attribution-noncommercial-noderivs (unported) CC licence, you see this:

Noncommercial. You may not use this work for commercial purposes.

That’s great. However, you might not realize that this does not guarantee that the CC licence prohibits any commercial use.

Why? Because the CC licence makes a point of stating that, notwithstanding the rest of its provisions, there is no derogation from the user’s fair dealing or fair use rights. If you read a little further down on the human-readable summary page, you’ll also see this:

Your fair dealing and other rights are in no way affected by the above.

(If you’re reading a US-ported version, it will say “fair use”.)

And if you click through to read the actual licence text (which, by the way, was written by a human, too), you’ll see (unported version again):

Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

The fact is that while much of fair dealing or fair use is non-commercial in nature, some uses of copyrighted works may be fair and have a commercial aspect at the same time. If I do research in order to provide a service to clients who pay me for my work, depending on my activity I may be dealing fairly with the research materials I use, but there is still a commercial aspect to my use.

Let’s take the example of the previous post: the situation where the publisher doesn’t want somebody making money by teaching classes from patterns that are distributed free of charge, even if the teacher directs the students to get their own copies. Clearly, there is some kind of commercial use going on; the teacher (who probably has her own copy) is reading the pattern, and helping her students knit the pattern from their own copies — for a fee. The exam question: would a CC non-commercial licence suit the publisher’s requirements, and why or why not? Would your answer change if the teacher did hand out copies of the pattern, otherwise in accordance with the attribution and non-derivation requirements? Would your answer change again if it was not a teacher, but a retailer who displayed a knit sample next to a pile of yarn for sale, and handed out cards with the pattern’s URL (not the pattern)?

The bottom line is this: if you are uncertain whether a commercial use falls within fair use or fair dealing, and you are interested in prohibiting that kind of use, seriously consider whether a CC licence is your best option. You might need to impose some other kind of licence agreement to protect your work the way you want.

How do (hand knitting/crocheting) designers view fair use or fair dealing? A good thing, right?

I assume that, for many designs, we can all agree that some of the elements incorporated into a design or a pattern did not originate from the designer, to the extent that the designer cannot really complain if someone else in turn takes that same element and incorporates it into their own design or pattern: a traditional motif, a stitch pattern from a dictionary.

And it could be that it is that element that really “makes” the design. Sometimes the designer has applied her own interpretation to the element, somehow adapted it to make it work in the shape of the garment or accessory in a way that may not have been done before. Yet, the element itself is not new, and we do not question the designer’s right to take that known element, and incorporate it into something from which she can derive profit.

Why, then, is there such objection to having shops teach from those patterns, for pay, without further permission, provided the teacher who teaches from the pattern does not violate copyright in the pattern (for example by running off unauthorized copies (e.g., paying for one and making copies for distribution from that one) or removing the original authorship/copyright ownership information)? Even in the context of patterns distributed by the publisher without charge, if each student is directed to obtain her own copy personally? And provided there is no implication that there was any connection between the shop and the designer, beyond the fact that it was her pattern being used in the class?

This is not so much about the legal underpinnings, as it is me trying to understand why that next step is so problematic for some designers.

Or maybe I do understand, and I don’t realize it. I remember when I finished writing Rogue: I was so proud of it; I had never seen anything like it. And it was time to price the pattern. I knew what kinds of prices had been charged for PDF patterns at the time (Bonne Marie Burns was my benchmark), but I remember thinking to myself that there was no way I could let it go for more than $10/copy. I talked myself down from that price, obviously, but I remember that it was a bit of a wrench to accept that what I thought I deserved was likely not realistic. It’s hard to be objective about your own work.

And initially, I did not like the concept of people knitting FOs for sale from my patterns any more than others seem to do. But then I realized that the likelihood of anyone earning a living from knitting up my patterns alone was pretty slim. The designs that I care most about are not ones that can be easily replicated by machine; there would still need to be a substantial amount of handwork, even if the construction of the piece were somehow changed to maximize the amount of machine knitting. (I do care that knitters are not exploited, which is why my licence specifies that the seller must be the one who knit the item, along the lines of a typical angel policy.)

It also struck me that there was some kind of incongruity: if I was willing to say that hand knit items were undervalued and if I deplored the fact that people had been taught to value the cheaply mass-produced over the artisanally-crafted works, why did I want to deprive the skilled knitter from realizing revenue from knitting my designs, if my designs could help the knitter realize a higher price for her skills?